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UNITED STATES v. MCGREGOR

October 19, 1994

UNITED STATES OF AMERICA
v.
ONIOUS McGREGOR


Dalzell, J.


The opinion of the court was delivered by: STEWART DALZELL

Dalzell, J.

 October 19, 1994

 I. Introduction

 On October 16, 1986, a grand jury indicted defendant Onious McGregor on six counts of violating federal law. McGregor had re-entered the United States after deportation to Jamaica, and the counts of the indictment all related to McGregor's unlawful re-entry.

 On November 24, 1986, McGregor pleaded guilty to Counts One, Three, and Four of the indictment. Count One charged a violation of 8 U.S.C. § 1326 (punishing unlawful re-entry by a deported alien), which at that time carried a maximum penalty of two years; Count Three charged a violation of 18 U.S.C. § 911 (punishing false claims of United States citizenship), which carried a maximum penalty of three years; and Count Four charged a violation of 18 U.S.C. § 1028(a)(4) (punishing knowing possession of identification documents with intent to defraud), which carried a maximum penalty of one year, id. § 1028(b)(3).

 On June 21, 1994, the Upper Darby police arrested McGregor, who was still on probation, and charged him with violating state laws pertaining to the possession of controlled substances. On August 17, 1994, this Court *fn1" revoked McGregor's and re-sentenced him to serve two additional years in prison. We followed the command of 18 U.S.C. § 3565, which states:

 
Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.

 Id. § 3565. *fn2" Congress added this quoted language in 1988 as part of the Anti-Drug Abuse Act of 1988, and instructed the courts to apply it "to persons whose probation, supervised release, or parole begins after December 31, 1988". Pub. L. No. 100-690, § 7303(d), 1988 U.S.S.C.A.N. (102 Stat.) 4181, 4464. No one disputes that Mr. McGregor's probation began after this date.

 On August 26, 1994, the United States moved for reconsideration of our Order resentencing McGregor. The Government urges that we erred in two respects. First, it argues that we erred by applying § 3565 in resentencing McGregor and should have resentenced him pursuant to the law in place before the enactment of the Sentencing Reform Act of 1984 ("SRA"), 9 Pub. L. No. 98-473, 1984 U.S.C.C.A.N. (98 Stat.) 1987. Second, the Government argues that we miscalculated the ceiling of McGregor's sentence. We conclude below that the Government is correct in its second conclusion. Therefore, we will vacate our prior Order and resentence McGregor to one year in prison. *fn3"

 II. Whether this Case Should Be Analyzed Under the Sentencing Reform Act

 Inasmuch as McGregor did not begin his parole until after December 31, 1988 (the date on which the 1988 amendment to § 3565 took effect), it would appear that the plain language of § 3565 applies to him. Cf. United States v. Ron Pair Enterprises, 489 U.S. 235, 109 S. Ct. 1026, 1031, 103 L. Ed. 2d 290 (1989) ("The plain meaning of legislation should be conclusive, except in the 'rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intention of the drafters.'") (alteration in original) (citing Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 102 S. Ct. 3245, 3250, 73 L. Ed. 2d 973 (1982)); United States v. Fisher, 10 F.3d 115, 120 (3d Cir. 1993), cert. denied, 129 L. Ed. 2d 865, 114 S. Ct. 2746 (1994). Yet if the predicate of § 3565 is the mandatory condition of § 3563(a)(3), then Judge Hannum could not have sentenced McGregor pursuant to it in January, 1987. *fn4" This is the Government's view. It argues § 3565 "can not be applied to pre-guidelines offenses and sentences, since § 3565 itself is only effective for offense committed on November 1, 1987 and thereafter." Government's Motion for Reconsideration and Correction of Sentence at 2-3. Under the Government's interpretation, then, the 1988 amendment would apply only to criminals who committed offenses after November 1, 1987 and who are placed on probation, supervised release, or parole after December 31, 1988.

 The Government gives two reasons in support of its interpretation. First, the Government relies on the Supreme Court's decision last term in United States v. Granderson, 127 L. Ed. 2d 611, 114 S. Ct. 1259 (1994), in which the Court defined "original sentence" in § 3565 to mean the sentencing range available under the SRA at the time of sentencing. Second, the Government takes the position that the application of the 1988 amendment to McGregor -- whose offenses occurred before § 3565 took effect -- would raise "ex post facto ...


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